High Court of Ireland Decisions

1. This is an application brought by the Third Party in which it seeks, by Notice of Motion dated the 11th December, 1997, an Order pursuant to Order 16, Rule 8(3), of the Superior Court Rules, an Order setting aside the Order of this Court made on the 7th July, 1997 joining the Third Party as Third Party to these proceedings.

2. The facts insofar as they are relevant to the present application can be summarised as follows.

3. The Plaintiff in this action claims that she suffered personal injuries as a result of the negligent driving of a car owned by the First named Defendant, Mr. Peter O'Callaghan, which, it would appear, was uninsured at the time when it was involved in the accident. The circumstances in which it came to be uninsured are claimed by the First named Defendant to be as follows. He says in his Affidavit, grounding the application to join the Third Party, that he was driving his car on the 8th November, 1991 when he was in collision with the Plaintiff's car and as a result of this collision she suffered injuries. He says that he insured his car through the agency of the Third Party, Mike Murphy Insurance Brokers Limited, in October of 1991 and this insurance was placed with a Zurich Insurance Company. This policy of insurance was renewed on an annual basis through the agency of the Third Party. Due to an accident which the First named Defendant had, he was unable to drive his car and at his request the policy was suspended during his illness. Subsequently, when the First named Defendant had recovered he wished to reinstate the policy so he informed the Third Party in October 1991 by telephone that he wished to do so. He was told on that occasion that in order to renew the policy it would be necessary to have a medical report. He obtained the medical report and this was forwarded to the Zurich Insurance Company, however they replied that it was not a medical report which they required but an engineer's report (presumably on the First named Defendant's car). They would not reinstate the policy without this report. The First named Defendant says that he was never told by the Third Party of the necessity to obtain the engineer's report and it is alleged that the Third Party represented to the First named Defendant that his insurance policy had been reinstated and that he was covered to drive his car. He was involved in the accident shortly afterwards. He now claims indemnity or contribution in respect of any sum that he is required to pay to the Plaintiff against the Third Party.

4. It is agreed by the parties that the Third Party is not a concurrent wrongdoer with the First named Defendant and accordingly Section 27(1)(b) of the Civil Liability Act, 1961 has no application.

5. The Order joining the Third Party was made on the 7th July, 1997.

6. The Third Party now applies under Order 16, Rule 8(3), to set aside the Third Party proceeding. The basis upon which the application is made is that there has been, firstly, unnecessary and unreasonable delay in serving the Third Party Notice and well over the twenty-eight days provided for in Order 16, Rule 1(3). Secondly, it is alleged that the Third Party has suffered prejudice as a result of that delay.

7. The Superior Court Rules provide that the application to join the Third Party is to be made within twenty-eight days from the time limited for the delivery of the defence to the Plaintiff's Statement of Claim. The Statement of Claim was delivered on the 14th February, 1996 and so the time limit for the service of the Third Party Notice expired twenty-eight days later. In fact the Third Party Notice was not served until on or about the 24th July, 1997, that is approximately one year and four months later.

8. In my view, while clearly the First named Defendant has failed to comply with the time limit provided for in the Rules, this delay would not, standing alone, be of such significance as to constitute a ground for setting aside the Third Party procedure. In my view, to constitute such a ground it would be necessary for the delay of this length to be coupled with circumstances which amounted to a prejudice suffered by the Third Party based on this delay.

9. The prejudice claimed in the proceedings by the Third Party is contained in paragraph 10 of Mr. Murphy's Affidavit sworn the 4th December, 1997. In this he says that despite an extensive search in the offices of Mike Murphy Insurance Brokers Limited, it has been impossible to locate the documents and files relating to the First named Defendant. This arises because of the long period of time which has elapsed. He says:-

10. Mr. Murphy goes on to say that he believes as a consequence the Third Party has been severely prejudiced "by the inordinate and inexcusable delay of the First named Defendant in bringing proceedings joining the Third Party".

11. On one reading of this Affidavit, the suggestion is made that it was only upon the service of the Third Party proceedings on the Third Party that they first became aware of the necessity to locate the documents involved in the transaction, however I am satisfied that this cannot have been the case. The First named Defendant was prosecuted under the Road Traffic Act for driving his car without insurance cover. Arising out of this prosecution the First named Defendant's Solicitors made enquiries from the Third Party in relation to the insurance cover and by letter of the 9th March, 1995, the Third Party informed them that their records had been destroyed. Accordingly, the disadvantage or prejudice which flows from the Third Party's inability to have access to these documents arose prior to the time when it was necessary for the First named Defendant, even complying strictly with the provisions of the Rules, to serve the Third Party Notice since the Statement of Claim was only served in February of 1996. In my view, such prejudice as arises relates not to any delay on the First named Defendant's part.

12. Apart from all of the considerations, it has been the view of the Courts that, save in exceptional circumstances, it is desirable that all issues as to indemnity or contribution as between third parties and defendants should be disposed of at the same time as the issues relating to the defendant's liability towards the plaintiff. Such a view, in my view, should only be departed from where serious prejudice would arise as a result of following this course. I am of the view that no such prejudice arises in this case and I accordingly refuse the relief sought.